New South Wales Consolidated Acts

LOCAL GOVERNMENT ACT 1993 - SECT 440H

440H Departmental Chief Executive may investigate or seek report on misconduct of councillor

(1) The Departmental Chief Executive may conduct an investigation for the purpose of determining whether a councillor has engaged in misconduct.

(2) The Departmental Chief Executive may conduct such an investigation--

(a) on his or her own initiative, or

(b) if the general manager of a council refers an allegation of misconduct by a councillor to the Departmental Chief Executive, or

(c) if a council, by resolution, refers an allegation of misconduct by a councillor to the Departmental Chief Executive, or

(d) if the Ombudsman states in a report that the Ombudsman is satisfied that a councillor has or may have engaged in misconduct, or

(e) if the Independent Commission Against Corruption states in a report that the Commission is satisfied that a councillor has or may have engaged in misconduct.

(3) For the purpose of an investigation, the Departmental Chief Executive may, by order in writing served on any person, direct the person to do any one or more of the following--

(a) provide written information, by the date specified in the order, and to verify the information by statutory declaration,

(b) produce, at a time and place specified in the order, any document specified in the order that is in the person's custody or control.

Note : Failure to comply with the direction is an offence under section 661.

(3A) However, the Departmental Chief Executive is to withdraw the direction if it appears to the Departmental Chief Executive that--

(a) the person does not consent to compliance with the direction, and

(b) the person would not, in court proceedings, be required to comply with a similar direction on grounds of privilege against self-incrimination or legal professional privilege, and

(c) the privilege is not a privilege in favour of a public authority or former public authority,

(and, if the direction is required to be withdrawn, the person is not guilty of an offence against section 661).

(4) The Departmental Chief Executive may take copies of or extracts from any document to which the Departmental Chief Executive gains access under this section.

(5) The Departmental Chief Executive may arrange for a departmental report to be prepared in relation to an investigation conducted under this section.

(5A) The Departmental Chief Executive may arrange for a departmental report to be prepared about whether a councillor has engaged in misconduct without an investigation being carried out under this section if--

(a) the matter has been referred to the Departmental Chief Executive by the council and the Departmental Chief Executive is of the opinion that the report may be based on the findings of an investigation conducted by or on behalf of the council, or

(b) the Departmental Chief Executive is of the opinion that the alleged misconduct, if proven, would be minor in nature and, were it to warrant disciplinary action, the disciplinary action would be comprised only of counselling or reprimanding the councillor, or

(c) the Departmental Chief Executive otherwise considers it appropriate to do so.

(6) The preparation of a departmental report is a prerequisite to a decision by the Departmental Chief Executive to take disciplinary action against a councillor, unless the disciplinary action is taken on the basis of a report by the Ombudsman or Independent Commission Against Corruption.

(7) This section authorises reports relating to misconduct to be made by the Ombudsman or Independent Commission Against Corruption and a reference to a report of the Ombudsman or Independent Commission Against Corruption is a reference to a report made to the Departmental Chief Executive under the authority of this subsection or under any other provision of this or any other Act.

(8) The powers conferred on the Departmental Chief Executive by this section may also be exercised for the purposes of determining if an administrator has engaged in conduct that would be misconduct if the administrator were a councillor.

(9) In this section--

"administrator" means an administrator of a council (other than an administrator appointed by the Minister for Water, Property and Housing under section 66).